This is the latest in a series of posts on the records of Brooklyn’s Corporation Counsel, which are currently being processed with funding provided by a Council on Library and Information Resources (CLIR) “Hidden Collections” grant.

The U. S. Supreme Court recently upheld New York City’s policy of preventing unvaccinated students from attending public schools while another student has a vaccine-preventable disease. This is just the latest in long line of judicial decisions which addresses the limits of government control over the health of the individual. Over one hundred years ago, during a smallpox epidemic which ravaged the city, the very same situation was addressed in the courts of Brooklyn. The city’s Department of Health was determined to actively control the spread of the disease, often coming into conflict with those citizens whom they were trying to protect.

Prior to the development of a vaccine, smallpox was one of the most feared diseases on the planet – it was extremely contagious, and had killed and disfigured millions since ancient times. The first traditional vaccine was developed in England in the late 18th century, and by 1800 it was introduced to the United States. While the vaccine was highly effective at reducing the spread of the disease, from the beginning there was resistance to state imposed vaccination programs. Laws varied from region to region. In Europe, Germany and England had made vaccination compulsory. Massachusetts introduced the first mandatory vaccination policy in the U.S. In New York, there were no compulsory vaccination laws, excepting children who attended public schools.[i]

New York Times, 24 March 1894.

In 1892, about 20 years since the last epidemic, small pox returned to Brooklyn. At first the cases remained isolated. Then, from December 1893 to February 1894, there were about 70 newly diagnosed cases a month. By March of 1894 the number of infections had increased to 150. Brooklyn’s Department of Health, led by Dr. Z. Taylor Emery, decided it was time to take action. The department operated under the premise that the masses (i.e. the poor, but also business owners and landlords), “needed the guidance of enlightened and scientifically trained professionals to ensure the public good.”[ii] To that end, they began a policy of vaccination and quarantine that sometimes overstepped the bounds of New York law.

The department’s strategy of vaccination and quarantine was something akin to the military tactic of “shock and awe.” The 1894 annual report of the Department of Health describes the typical response to a reported case of smallpox: “As occupants of infected houses were sometimes known to escape therefrom to other parts of the city, before the removal of the patient, it was found necessary to put a police quarantine on the house pending arrival of the ambulance, the disinfection of the premises, and vaccination of the inmates. As soon as precautions were complied with, quarantine was raised, so as to inconvenience the occupant as little as possible.” As you can imagine, many residents found the process to be somewhat more severe than a mere inconvenience, as they were essentially placed under house arrest while their clothes, beddings, and other household goods which might be harboring the disease were destroyed.[iii]

Kingston Ave. Hospital disinfecting station. Annual Report of the Department of Health of the City of Brooklyn, 1894.

Sometimes the afflicted were allowed to convalesce at home, but more often than not they were sent to the Kingston Avenue Hospital, also known as the Contagious Disease Hospital, in Flatbush (the hospital was located at Kingston Ave. and Fenimore St., today the site of the High School for Public Service). The hospital was soon filled to capacity, and tents were erected to house even more patients. Naturally, local residents were alarmed by the influx of disease carriers. The hospital was threatened with arson, and soon guards were stationed on the premises to protect both the patients and staff.[iv]

The city was pro-active in its vaccination efforts. Over two dozen free vaccination clinics were set up across the city. A team of vaccinators was sent to the 27th Ward (Bushwick), where a large German population (which was largely resistant to vaccinations) resided. The city focused on areas where large groups of people congregated, specifically schools, factories, and lodging houses. In one day, 2,000 workers were vaccinated at the Havenmeyer & Elder sugar refinery alone. [v]

Brooklyn Daily Eagle, 26 March 1894.

When a new case of smallpox was reported, not only was the entire household vaccinated on the spot, but teams would canvass all surrounding residences to prevent the spread of the disease. While the health department was not empowered to coerce the vaccination of citizens, they used quarantines (which were allowed by New York state law to prevent the spread of disease) to strong arm anyone who resisted. Quarantined homes were marked with a yellow flag, and policemen were stationed outside to prevent anyone was entering or leaving the home. Sometimes even food deliveries were prevented from entering the quarantined homes.[vi]

The policies of Brooklyn’s Department of Health led to a number of legal problems for the city, and there are several cases related to the epidemic in the records of Brooklyn’s Corporation Counsel.

Mary A. Ferrer sued the city for false imprisonment. She claimed to be misdiagnosed with small pox (while actually suffering from malaria), and was held at the Kingston Avenue Hospital for a week, all the while being exposed to the deadly disease.[vii]

John Salmon sued for injuries received as a result of his vaccination. According to the plaintiff, a health department official came to his home and asked if he was vaccinated. When Salmon indicated that he was not, the health official falsely declared that the vaccination was mandatory, and Salmon reluctantly submitted. Three days later his skin began to blister all over his body and he was confined to a hospital for three months.[viii]

Robert W. Goggin filed suit against city for the deaths of both his wife and daughter. He claimed that city failed to remove a small pox carrier from his apartment building, and as a result his wife and two children contracted the disease and were quarantined at the hospital. His wife soon died, and his daughter, who was later sent to the Home for Destitute Children, died of measles and pneumonia.[ix]

The most significant legal case found in the collection involves the vaccination of school children. In 1893, the New York state legislature passed an act to provide for the compulsory education of children, which also allowed school boards to appoint physicians to vaccinate students. Children were inspected for vaccination scars by the physicians, and any student who was suspected of being unvaccinated was prevented from attending public school.

This practice was challenged by the Kings County Anti-Compulsory Vaccination League, which was led by Dr. Charles A. Walters. He argued that the city had no right to exclude unvaccinated children from public schools. The case was heard by Judge Bartlett, who ultimately sided with the city. In his decision, he indicated that public school education was a privilege, not a right. Since the public school system was a creation of the state it was subject to reasonable regulation, especially regarding the health and welfare of the community. He still did not go so far as to endorse compulsory vaccination for all citizens, noting, “To vaccinate a person against his will, without legal authority to do so, would be an assault.”[x]

While this case ended in the city’s favor, their aggressive quarantine policy would not hold up in the courts. That same year a judge ruled that the health department had no right to quarantine the homes of citizens who had not contracted small pox. Legal challenges to compulsory vaccination continued into the 20th century, culminating in 1905 when the U.S. Supreme Court, “affirmed the right of the majority to override individual liberties when the health of the community required it.”[xi] Of course, as the recent Supreme Court ruling regarding school vaccinations indicates, the debate over the government’s role in public health remains unsettled to this day.